Judge Alex Kozinski Fears That People Share Too Much Info Online; But Does That Mean We Give Up All Privacy Rights?

from the seems-difficult-to-follow dept

First off, I should note that I like Judge Alex Kozinski -- the chief judge of the 9th Circuit appeals court. He's almost always entertaining (some consider that to be a fault, actually) and has many fans of his choice of language at times. Also, it's tough not to like a judge who amusingly enters himself into a blog contest for "judicial hotties" with the following opening line in a letter: "I must say that I'm severely disappointed in the slate of candidates you have fielded for your Judicial Hottie contest. While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me." Also, some of his rulings really are fantastic. However, he does seem to have a blind spot, where he starts sounding a bit like the old man screaming "you kids get off my lawn!" when he talks about the internet.

Judge Kozinski recently spoke at a Stanford Law symposium, and the text of his speech has been posted online, and in it, he admits that he's not particularly adept with modern technology -- in fact, he refers to himself as a "troglodyte." However, he then goes on to talk about how modern technology is destroying our privacy -- but not because of the technology itself, or the government (even though he discusses both things), but in the way in which people themselves share all sorts of private info.

Certainly, much of the talk is a thoughtful examination of how privacy norms have changed over time, and the role of technology, government and culture as it happens. Here's just a snippet:

I flew here today from Los Angeles. I drove to LAX, landed at San Jose Airport and a student drove me to Palo Alto. Who knows this? Big Brother knows. Why? Because I carried my cell phone, and who doesn’t carry a cell phone nowadays? The cell phone logs in every few minutes to a nearby cell tower, so if you obtain the telephone company’s records, it’s pretty easy to piece together exactly where I’ve been all day. And, if you have the student’s cell phone number, you’d also know how long we spent together and where we went.

Does the government obtain such records to check people’s alibis in case they are suspected of crimes? You bet they do. In fact, if you left your phone at home that day, so there’s no cookie-crumb trail to show you were somewhere else, prosecutors will argue that you not only committed the crime, but premeditated it as well—by leaving your cell phone at home so your steps couldn’t be traced. China has taken this to another level: Earlier this year, Beijing officials announced that they intend to use cell phones to monitor the movements of twenty million residents—“to ease traffic and subway congestion.”

But who needs cell phones? That’s old technology. Someday soon they’ll decide it’s easier to watch all of us, all the time. If you think it won’t happen, just look at Mexico: Last year, the city of Leon partnered with a biometrics firm to install iris scanners in public places from airports and police stations to stores and restaurants. The scanners will identify up to fifty people per minute, and will be used for both law enforcement and commercial purposes.

That, of course, focuses on the technology and government aspects. But then he gets into the human and cultural aspects, in talking about a somewhat famous case, involving a guy who sued a former lover because she wrote (sometimes graphically) about her time with him on a public website (that case got a lot more attention because the two were both Congressional staffers). Here, you can clearly sense the "the kids these days!" tone begin to seep through:

A while back, for example, the United States District Court for the District of Columbia saw the filing of a lawsuit titled Steinbuch v. Cutler. Steinbuch (a man) and Cutler (a woman) had been staffers for U.S. Senator Michael DeWine. They met after hours, had a few drinks and then went to her home and engaged in the type of activities that used to be considered private. The following day Cutler posted the following gem: “To answer The Question, no, RS and I did not fuck. (It is my ‘week off,’ if you recall.)” This, in my humble judgment, is already too much information. But the posting doesn’t stop there—oh, no, it’s just getting started. We learn, for example, that RS “[h]as a great ass,” that he had two ejaculations, and that he likes spanking.

During the course of the succeeding two weeks, Cutler continued to see quite a bit of Steinbuch, both figuratively and literally. And she assiduously reported their activities to the world, along with those involving other men with whom she was having sexual relations, including some for money.

This puerile and narcissistic account was picked up by another, better-known Washington blog and, for reasons I have difficulty understanding, soon tout-le-civilized-monde was reading about Steinbuch and Cutler’s sexual escapades. The upshot of all this was that Cutler lost her job with Sen. DeWine, but had no time to regret it because she soon got a six-figure book deal and a photo spread on Playboy.com. Meanwhile, Steinbuch brought his lawsuit, complaining of—you guessed it—invasion of privacy and infliction of emotional distress. He cut and pasted every word of Cutler’s blog into his complaint, which is where I read it.

There may only be a handful of people like Cutler and the people I saw on Jerry Springer—though it seems there is actually an endless supply of them. But we can all try to find comfort in thinking that these people are not like us—that they really are an aberration, representing a view of privacy and decorum that is quite different from that of ourselves and our friends and neighbors. But this is an illusion, because for every Jessica Cutler among us, there are the thousands or millions who are prepared to read their exhibitionistic writing and to watch the TV shows where they air their dirty laundry. By providing them an audience, we encourage others to engage in similar conduct, and we acquiesce in the erosion of privacy for all of us.

While this might come off as just as someone not liking the way "the kids these days" act, he's actually making a rather important legal point, even if I don't agree with it. As you (hopefully) know, the 4th Amendment against unusual search and seizure is our main privacy protection in the US. While other countries have more explicit privacy laws, the US relies on the 4th Amendment mostly. And the key standard that is often discussed around the 4th Amendment is whether or not the individual has a reasonable expectation of privacy in what they were doing. If there was a reasonable expectation of privacy, and the government spied on them without a warrant, that's (probably) a violation. If there was no reasonable expectation of privacy, then there's simply no Constitutional issue.

Of course, in this day and age, that barrier isn't always clear -- which is why (for example) there's been so much dispute (and mixed judicial rulings) on the legality of GPS tracking without a warrant by law enforcement.

That, of course, is an interesting subject in general. However, Kozinski takes it a step further, in that he appears to suggest that the fact that people are more public with their lives on the internet changes their own "reasonable expectation of privacy" and that may lead to the government having much greater rights to spy on people.

Of course, that is one of the great dangers of the internet and particularly of Web 2.0: No matter how private, dangerous, hurtful, sensitive, or secret a piece of information may be, any fool with a computer and an internet connection—which means just about everybody—can post it online, never again to be private or secret. They say that removing something from the internet is about as easy as removing urine from a swimming pool, and that’s pretty much the story. As soon as somebody posts an item, someone else picks it up and e-mails it to his friends, and friends of friends, and then bots and crawlers pick it up and the Wayback Machine makes sure the genie is never, ever to be stuffed back into the bottle.

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

While Kozinski leads readers down the garden path of logic with his step by step discussion of how privacy is changing, I find that bolded section above to be a big leap of logic -- and one that doesn't truly make sense. The shared information that he discusses and worries about is shared by choice. Kozinski may not like it, and may find it distasteful and crude (hell, it probably is distasteful and crude), but that does not automatically mean that the government should then be able to assume that all information has no reasonable expectation of privacy.

While I know that Judge Kozinski is thoughtful and nuanced in what he's discussing, this description seems to stray way too far into "well, I don't like this behavior, so I'm just going to say you crazy people deserve what you get if the government spies on you." That seems like a novel interpretation of the Constitution, and one that I find troubling. Yes, people may have less privacy today than in the past. Yes, they may reveal all sorts of things about themselves online -- whether on purpose or not. However, that doesn't necessarily make us our own enemies -- nor does it mean that, because some people display their sexual details, everyone loses the privacy over that info. Most importantly, none of that means that the government can then ignore privacy rights, just because some people don't mind sharing their private info.

That is, just because Judge Kozinski doesn't like that people share "too much information," it doesn't mean that the government should then be free to collect too much information, by claiming that there is no expectation of privacy in those situations.

Reader Comments

Actually, I think the judge is really on to something. The more you turn your life into a public spectacle, an open space, the more you are pushing to say it's all open. While it may never get to that point, I can see where his logic goes.

At this point, because technology permits it (Hi Mike!), public scanning and tracking of people is possible and seemingly legal. I don't have a problem with it, it is a public place and the same material could be obtained by hiring enough police officers to follow us all in public. The technology permits a wider range of surveillance than was possible 30 years ago. It's public space, get use to it.

We have become a society of exhibitionists and show offs, inviting people to see everything including our sex lives and so on. It's pretty logical to infer that we are giving up more of our privacy.

My Take

What is does "reasonable" mean in "reasonable expectation of privacy"? Doesn't the answer change over time, and depend on societal norms? And when members of the Facebook generation grow up to be the next appeals courts justices, can't we expect the cultural norms they grew up with to influence what they find "reasonable"?

That was what I took away from his opinion, and it strikes me as a valid warning.

Re:

"Actually, I think the judge is really on to something. The more you turn your life into a public spectacle, an open space, the more you are pushing to say it's all open."

That's stupid. I can reveal my most depraved secrets to you without even telling you my name. Does that give you or the police the authority (assuming that what I did was all legal) to demand to know my name?

I don't think so.

My standard of expectation of privacy remained the same throughout the whole experience. That is, I only told you exactly what I wanted, and not more. That doesn't give you or anyone else the right dig further (this, all assuming that what I did/said was legal).

People talk a lot about privacy nowadays, but the law currently does not reflect those opinions. That's why the Judge's opinion seems outdated.

In the law, if you tell any private fact to anyone who does not have legal privilege, (a legal duty to keep it secret), it's no longer private.

So the second you post some private detail of your life on Facebook, it's no longer private. It doesn't matter which privacy setting you use. Under the law, it's no longer private.

You might have a breach of contract case against Facebook for disclosing that information, but those formerly private facts are discoverable in criminal and civil cases.

In the old days we'd tell private stuff to our friends, but how would a prosecutor or an attorney know that? There was no record of such conversations back then. Facebook and Twitter and the like are those records.

Maybe the law will change. But until then there's a simple solution: If you want to keep something private, keep it private.

Re: Re: Well...

I think we both know that if anybody in a position of authority suspects it might've been illegal--or that they could totally win a lawsuit and put you into the prison/industrial complex for the rest of your life--then they'll find out more whether they have a right to or not.

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I think in the old days, you told this stuff to your friends, and trusted them not to disclose it or (it was newsworthy like the judge's example) give it to the newspaper to print. Assuming they breached that trust and did go blabbing it to the world, though, you would still end up with basically the exact same situation as if they breach your trust today and throw it up online.

Don't trust people who don't deserve it.

I would definately dissagree that the general public's appetite for such dirty gossip is some new thing we should be worried about. I don't think that part has changed a bit.

Kozinski may not like it, and may find it distasteful and crude (hell, it probably is distasteful and crude), but that does not automatically mean that the government should then be able to assume that all information has no reasonable expectation of privacy.

I don't read it that way. His not liking the information people are voluntarily releasing is irrelevant. The point Kozinski is saying is that we shouldn't be surprised that the government wants to push the boundaries of privacy, when people are pushing those boundaries themselves. It's a fair assessment.

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Actually, I think the judge is really on to something. The more you turn your life into a public spectacle, an open space, the more you are pushing to say it's all open.

If you're talking about a specific individual giving up privacy rights, there may be an argument. But it sounds to me like what the judge is saying is that because other people decide to give up their privacy, that means that my own privacy is forfeit as well. If that's his point, then I disagree with him on a fundamental ethical level.

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If 7 out of 10 of your neighbours do like talking about their sex lives or their lives in general, you can't act surprised or shocked that the government wants to know more about you and your neighbours. I'm not saying the government is right to do that.

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@Vincent Clement "The point Kozinski is saying is that we shouldn't be surprised that the government wants to push the boundaries of privacy, when people are pushing those boundaries themselves."

That's what I took away from it too. Basically, the government is made up of individuals. If these individuals start to think that privacy is an anomolly because their friends and family (and celebrities) share everything in their daily lives, then they will be more prone to do things as government employees to erode privacy (and/or push for legislation that will allow the government more access to your life).

Begging the question

The government is (somewhat) bound by “reasonable expectation of privacy”; but the government is a major actor in determining when there is a reasonable expectation of privacy.

If every e-mail we send and receive, every search string we submit, every web site we visit is accessible to the government at whim, there can be no expectation of privacy. If intercepting this sort of information is considered the equivalent of wiretapping and requires a warrant, an expectation of privacy does exist.

The “expectation of privacy” standard makes sense as a way to evaluate specific instances in a context where existing practice has already established what is usual. It doesn’t work for “new” technologies and scenarios: it merely begs the question. Some other standard, or law, must define these boundaries.

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"you can't act surprised or shocked that the government wants to..."

The days of being surprised by anything our government does are over. The bottom line here, and something I hope Mr. Kozinski comes to realize, is that only an individual's actions determine his or her reasonable expectations of privacy. This should be a no-brainer.

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If the rest of the world posts their diary on the internet and I keep mine in a safe, mine is private and theirs isn't. I could care less if the government "wants" to know about it, they have no right to. it's private.

Re: Begging the question

The government does not feel it is bound any longer by anything, and will do what it wants, regardless of the constitutionality or reasonableness of it. They do not care what your opinion is, or mine, or anyone else who does not agree with them. They own the police, the judiciary, and the mindless drones who keep voting them in repeatedly, despite their many public and egregious offenses agains the common good. The only thing that will define these boundaries is a wholesale uprising of the majority of the populace, with the extermination of the present government as the first step. Other than that, nothing will change for the better. Ever.

I disagree that the bolded section is a giant leap of logic, flawed or not. Nor all of it shared "by choice". By ignorance or stupidity certainly but not choice.

Far too many people, adults who really ought to know better, yell into their cell phones not only the lurid tales of their gall bladder operation in crowded coffee shops but the equally lurid details of their partner's sexual drawbacks or their child throwing up on the kitchen floor. They seem to think that their iPhone, Blackberry or Android phone come complete with a magical cone of silence and are offended when someone points out that they don't want to sit there with their Tim's Espresso and Apple Fritter. The response is always "you don't have to listen, this is a private call!!!" that for the last 15 minutes has become very, very public.

Similarly if you allow yourself to be tracked via your smart phone or a GPS device in your car and "broadcast" all over Facebook and Twitter don't complain when your house is broken into.

Governments, bless their intrusive hides, will latch onto all of this as will law enforcement. Don't bet that they already don't. We, the people, put it out there the cops are "out there" too. If we don't behave as if some of what we send out to the world is private it won't be private.

I'll break with the Judge where he talks about what he perceives of as the dangers of Web 2.0. Web crawler bots existed long before Web 2.0 became fashionable as they do now.

Like others I take this more as a warning than a threat. The more we share of ourselves online, the more our information crazy governments will expect us to share then demand that we share it.

The assumptions that we go along with all of this will start, as they always do, with police, then security agencies then eventually tax agencies and then all government apparatus' will want that information too.

The notion that we are governed by the consent of the people will, at some point, morph into being governed, for our own good, by the nanny state which has become all knowing and all seeing. A nanny state aided and abetted by Facebook like private entities, Tweets and...well, you can see where I'm going.

By then it will be up to others, perhaps not yet born, to rebel. I have enough faith in humanity that we will rebel one day.

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Instead of speech, let’s try an analogy with writing. Officer Fred thinks John has committed a crime. He sees John carrying an envelope addressed to Mary, which John puts in a mailbox. Fred wonders if that envelope might contain a letter that has incriminating information about John.

Fred can ask John about it; he can ask Mary about it. He can’t (legally) demand that John let him examine the contents of the envelope, nor intercept it at the post office, nor search Mary’s house for it, without a warrant.

I’m pretty sure “expectation of privacy” has never been an argument against warrants or subpoenas. (That would require something like attorney/doctor/*-client privilege.) This is about what government agents can do without having to give any good reason or obtain any judicial approval.

The tricky part is that, for example, US Mail and the wired voice telephone system are protected by laws that oblige the carriers and their agents not to compromise their users’ privacy. As far as I know, there is no similar clear law (in the US) that requires ISPs, social networks and other kinds of communications services developed in the last half-century to maintain similar standards of trust. Without that, they have a troubling incentive to provide (quietly) whatever data a putative authority requests.

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Or, to say that another way:

It’s one thing if I’m on trial for a crime and the prosecution wants to access and enter into evidence my Amazon purchase history for the past three years, arguing that it is relevant for some specified reason. (My attorneys will object if it’s worth doing so, but that’s defense, which is results-oriented and has nothing to do with principle.)

It’s a whole different thing if I’m not accused of anything, but someone from city hall wants to see everything I’ve purchased from Amazon for the past three years, for “no specific reason.”

Simple Standard

How about this:

If for you or I to do fill-in-the-blank would be hacking, unlawful interference with private property (I’m pretty sure I can’t legally attach a tracking device to your car without your permission), trespassing, breach of terms of service or otherwise a violation of civil contract or criminal law... then government agents don’t get to do it without a warrant, or some other specific, affirmative legal basis.

Privacy is irrevocably changed, and that's not something most people will care about because they've gotten used to things like Facebook. So that's the new reality. Most online privacy issues can be prevented by common sense. Particularly problematic for many people is seeing how they post personal information on social media, neglect to use privacy settings, and are surprised when their personal information is stolen weeks later. While you can be careful about what you post about yourself, you can't prevent other people from posting about you. Also problematic for people is how there are sites like DirtyPhoneBook where people post personal information about each that can't be removed. With Google making all of this information widely available, being vigilant about seeing what people can find out you is critical to maintaining your online reputation. Facebook can do a bit more to prevent people from accidentally messing up their own lives by encouraging more sensible defaults, but in the end people have to be smart about what they post about themselves online, and this doesn't solve all potential problems.

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1) Insults the blogger.
2) didn't read the article.
3) Sides against the blogger without reading the article (has no idea what judge K wrote)
4) Insults the blogger again.
5) Has not idea whatsoever the case or the decision is about.

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I agree with Mr. Masnick's comment that some of Judge Alex Kozinski's opinions are brilliant and concur that the Judge can get a little carried away and may be a little out of touch with the real world. Here's a new spin on privacy rights:

I wonder if it's ever come up that individual privacy rights can be violated by publicly-displayed court orders that are intolerably unjust and demeaning, not to mention unconstitutional. And what about the fact that the district courts in the Ninth Circuit post for the public to view in forma pauperis applications with social security numbers and the like. I was shocked when this happened to me but was told that it is "policy." I didn't choose to share that private information with the public but the Ninth Circuit doesn't seem to have a problem sharing it for me.

The good thing about society is that it doesn't care about things that mostly it doesn't care about theoreticals unless it involves children than all reason goes out the windown but I digress, society seems to wait until something really happens and then it takes action so in that point that is maybe why people appear to not care about privacy, but it is a mistake to think so, so of the most sensitive issues are about privacy and people do care deeply anyone even a judge that can't see that is not looking hard enough.

Yes there is dumb people who do dumb things, they all will learn to secure their lifes at some point and you will see a lot of people getting bitten by those things specially when what they do also compromises others, the biggest threat to privacy is other people and still I don't see people ending relationships or saying privacy to others that don't know how to chose their inner circle right don't deserve it.

Some years ago, Bruce Schneier talked about technological developments (content-based advertising in email, RFID tags) and official actions (warrantless telephone eavesdropping, inspecting laptop data at border crossings) having the potential to affect the "reasonable expectation of privacy" aspect of the Fourth Amendment in the US. Schneier's preference seemed to be establishing privacy as a "fundamental human right" and having the "expectation of privacy" determined by what society decides, as opposed to technology (or, presumably, official abuses of power.) Among other things, the existence of privacy-violating technology does not mean that privacy simply must be violated.

(On the issue of telephone conversations and privacy, the Just Cause Law Collective had a slightly unusual (though possibly useful) recommendation: call participants should not make jokes or speculations about the line being tapped because to do so means that the participant does not have a reasonable expectation of privacy. For such a situation, the recommendation is to tell the participant that their joke is silly and that "I believe that I have a reasonable expectation of privacy in this phone conversation.")

Among other comments from the judge is the one that leaving a mobile phone at home is evidence towards guilt from the view of a prosecutor. A justification for surveillance that has come up at times is that of surveillance records providing an alibi for an innocent party or helping to establish that an innocent party really was innocent. Walter Olson mentioned this issue with regard to traffic accident responsibility and red-light cameras. To be sure, though Mr. Olson seems to be opposed to such cameras, views do vary. Of particular note, though, is when Mr. Olson states that "positive externalities" that arise from traffic cameras (and possibly other surveillance methods) should not settle certain questions regarding the use of such cameras.

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The problem is this: the diary isn't being read while it is in the safe. They have a camera reading it over your shoulder as you write it, and the camera itself is in a public place. So long as you have a "reasonable expectation of privacy" for your diary, they can't do that. However, that phrase is (in court, where this is eventually decided) very much weighed against what the rest of the culture is doing. Without it, you had better only read that diary inside the safe with the door shut.

Re: Re: Begging the question

a wholesale uprising is not necessarily the best tack to take, and very much requires you to win the hearts of a good portion of those voting for them. Rather, the better approach is to predefine a standard of action that is beyond acceptable bounds and then campaign to remove any politician that steps outside those boundaries. Before every election, tighten the standard a little, with it only being evaluated for actions after the election.

I'd suggest starting with the need to act on every petition signed by X% of their constituents*, where X is x+y and y is the percentage signing a counter petition (research needed to determine a good level to initialize x, probably should degrade to >0 as the sum of x and y approaches 100).

*In other words, say x was set to 20% and 12% of the population signed the counter-petition. If 32% or more signed the petition calling for a certain action and the politician did not make every legal effort** to comply, then vote them out, no matter how you feel about the issue at hand, because they have demonstrated that they are not willing to actually represent the people.

** Rigging the game such that there is no valid move for a politician to make should never be done and any such situation should be ignored by voters. Such a maneuver would only weaken the overall impact of this strategy.

Desperation does not need to lead to revolution. We just need to reconfigure the game in a major enough way.

We want the right to give up our privacy as we will, we don't want it taken away from us. We want privacy when we do something we shouldn't, and clearly don't want privacy when talking about things we're proud of.

The opinion ignores the fact that our Constitutional Republic was established to protect the rights of individuals. If person A chooses to broadcast their life details person B is not obligated to sacrifice their privacy.

Further, anonymity is a form of privacy. Speaking in public when you have a reasonable expectation of not being personally identified by those within earshot is not a waiver of privacy.

Finally using the logic employed and applying it to national security we could conclude as follows:

a. the US government has failed to secure it's territorial borders thereby exposing citizens to foreign belligerence.